Introduction
A year after two U.S. Supreme Court rulings setting forth liability standards for employers for unlawful sexual harassment by supervisors, the Equal Employment Opportunity Commission issued a guidance implementing those decisions and extending those standards to apply to all types of harassment. In addition to race, national origin, age and disability, the EEOC says the standard applies to sexual harassment of a nonsexual nature, defined as harassment targeting an individual because of his or her sex, even if sexual comments or conduct is not involved.
In the Supreme Court decisions - Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton - the Court said that employers should be held liable when a supervisor creates a hostile work environment and the employee is fired or demoted or loses a significant job benefit. In the absence of such a "tangible employment action," an employer can defend itself by proving that it tried to prevent or correct the harassment and that the employee failed to take advantage of grievance procedures.
The guidance comes at a time when the number of sexual harassment charges filed with the EEOC and state agencies has risen from 6,883 in fiscal year 1991 to 15,618 in fiscal 1998. In that same period, the number of racial harassment claims rose from 4,910 to 9,908. A summary of the guidance follows. (The full text of the guidance may be found at the EEOC's web site: http://www.eeoc.gov.)
Who Is a Supervisor?
For an employer to be vicariously liable for unlawful harassment, the harasser must have supervisory authority over the complainant. To qualify as an employee's supervisor, the individual:
- Has the authority to make or recommend decisions that may significantly change the employee's employment status; or
- Has the authority to direct the employee's daily work activities.
As with any other discrimination claim, if the employer presents a nondiscriminatory reason for the tangible employment action, the employee making the claim will have to prove that the reason was a pretext for the true discriminatory motive.
Example: An employee alleges she was demoted because she refused her supervisor's sexual advances. A determination would have to be made whether the demotion was because of her response to the advances, and hence because of her sex. If the employee can prove the demotion was linked to the preceding harassment, she could seek relief for the entire pattern of misconduct culminating in her demotion, and no affirmative defense would be available to the employer.
Affirmative Defense
In cases where a supervisor's harassment creates an unlawful hostile environment but does not result in a tangible employment action, an employer can raise an affirmative defense to liability or damages. The guidance explains the two prongs of an affirmative defense: (1) the employer's duty to exercise reasonable care to prevent and promptly correct any harassment, and (2) the employee's failure to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
While "reasonable care" will generally require an employer to create, disseminate, and enforce an anti-harassment policy and complaint procedure, the guidance emphasizes that even the best policy and complaint procedure "will not alone satisfy the burden of proving reasonable care if the employer fails to effectively implement the process." And, alternatively, lack of a formal policy, as may be the case with a smaller employer, will not defeat the defense as long as the employer has taken other steps to prevent and correct harassment.
Policy
At a minimum, an employer's policy and complaint procedure should contain:
- A clear statement that the employer will not tolerate harassment of any kind and that it will stop harassment before it rises to the level of a violation of the law;
- An assurance that employees who make complaints will be protected against retaliation;
- A clearly described complaint process that provides accessible avenues of complaint;
- An assurance from the employer that the confidentiality of harassment complaints will be protected to the greatest extent possible while it conducts its investigation;
- A mechanism for a prompt, thorough, and impartial investigation with an investigator well-trained in the skills of interviewing;
- An assurance that the employer will take immediate and appropriate corrective action should it determine that harassment has occurred.
Other Steps
An employer also has the duty to instruct all of its managers and supervisors to report all complaints of harassment, whether or not the complaint conformed to established procedure. Unwelcome conduct or harassment should be corrected regardless of whether a complaint has been filed.
An affirmative action defense has to show that the employee unreasonably failed to use any complaint procedure provided by the employer. Proving that the employee's failure to complain was unreasonable is the burden of the employer, and that determination depends on the particular circumstances and information available to the employee at that time. For example, an employee might reasonably ignore a small number of incidents, hoping that the harassment might stop, before complaining to management. However, if the harassment persists, then further delay in complaining on the part of the employee could be considered unreasonable.
The employee also might fail to use the complaint process because of a perception that:
- There was a risk of retaliation;
- There were obstacles to complaints; or
- That the process was ineffective.
Again, the employer must prove that such a perception is unreasonable.
Other Efforts
A complaint made directly to the EEOC or to a state fair employment practices agency while the harassment is ongoing could be considered an effort to avoid harm sufficient to deny the employer an affirmative defense. The timing of the complaint could affect liability or damages: if the employee could have avoided some of the harm by complaining earlier, damages would be adjusted accordingly.
Conclusion
Despite the best efforts of both employer and employee, unlawful harassment may occur and harm may result. An employer who immediately took corrective action after a prompt claim of harassment may succeed in preventing future harm but may not be able to correct the harm as employee has already suffered. The guidance points out that harassment is the only type of discrimination carried out by a supervisor for which an employer can avoid liability, but only under limited circumstances, provided both prongs to the affirmative defense are met. In other words, if both parties exercise reasonable care, the affirmative defense will fail.
Although EEOC's policy guidance does not have the force of law, courts frequently cite the agency's interpretation in their rulings. While many employers take great care to inform employees about their policies on sexual harassment, they not should make sure that their policies explicitly address all forms of harassment and that all employees know and understand what those policies say.
For more information on harassment or any of Krukowski & Costello's services, please call (414) 423-1330 or e-mail dlk@kclegal.com.
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